Category Archives: Uncategorized

Post Ferguson Fear of the Grand Jury: Fox 2 Questions Trial Attorney Michelle Funkenbusch On Move to Grand Jury of Furrer’s Felony Case

Is a Grand Jury still Grand???

Reporter Andy Banker  from Fox 2 stopped by the office this afternoon to talk about the move of Mayor Mark Furrer’s case to a grand jury at the last minute from a preliminary hearing.  As you know, the proceedings are secret and we cannot watch or be part of the process as the law firm for the victim. We represent cyclist Randy Murdick who alleges the Mayor of Sunset Hills intentionally ran him off the road. Reporter Banker was wondering if we have concerns over the last minute move to a grand jury.

While I do not have blind faith in the legal process, I do, in fact, have faith in our justice system that an indictment will follow.  I have personally seen in my criminal defense work, the St. Louis County Prosecutor’s Office fight zealously to protect our streets from people they believe endanger us on the road.  We will find out in the next few days the fate in the criminal court of the Mayor of Sunset Hills. Let us hope that the people that lost faith in the justice system over “Ferguson” will see that the Grand Jury is still grand.

Michelle M. Funkenbusch

314-338-3500

Sunset Hills Mayor’s Felony Case Set For Grand Jury Wednesday; Board of Aldermen set to Vote on Impeachment Ordinance Tuesday

Grand Jury to be used to determine probable cause in case of assault of a cyclist by local Mayor Mark Furrer. The victim is represented by cyclist and St. Louis Trial lawyer Michelle Funkenbusch.

The felony assault and property damage case against Sunset Hills Mayor Mark Furrer has been switched from the preliminary hearing docket to the St. Louis County Grand Jury. The case stems from allegations Mark Furrer intentionally hit cyclist Randy Murdick with his car after yelling “get off my $#^&ing road” several times. As many of you know, our law firm represents the cyclist in the personal injury case and we make it our regular practice to advocate for cycling safety and for sharing the roads. We have been asked many questions about the pending felony case and impeachment process.  The Grand Jury hearing is scheduled this Wednesday December 10, 2014. The St. Louis Grand Jury process has been in the news a great deal lately with the “no true bill” finding regarding Ferguson Police Officer Darren Wilson in the shooting death of Michael Brown.

On October 1, 2014, a Complaint was filed in St. Louis County, Missouri against Sunset Hills Mayor Mark Furrer for Second Degree Assault and First degree property damage, C and D felonies, following his attempt to run Randy Murdick off the road. Randy was on his bicycle while the Mayor was driving his red Mercedes convertible. According to the Prosecutor’s office, the investigating officer will be the only one to testify. The victim has not been asked to testify. The proceeding, like all Grand Jury proceedings, is closed to the public. We will likely find out the results Thursday.

Three independent witnesses support Randy Murdick’s version of the events. The Mayor has claimed in the media that Randy tried to hang onto his convertible after running a stop sign. Randy has vehemently denied the Mayor’s allegations and those allegations are not supported by any witnesses.

SUNSET HILLS BOARD OF ALDERMAN OPEN MEETING TUESDAY DECEMBER 9th, 2014 TO VOTE ON IMPEACHMENT ORDINANCE

Tuesday December 9th, 2014 at 7:00 p.m. at the Sunset Hills Community Center will be the monthly Sunset Hills Board of Alderman meeting wherein they will be voting on the impeachment procedures introduced at the last meeting.  At the beginning of the meeting, you have to make a request to speak if you wish to do so. You will have three minutes. We encourage all Sunset Hills residents and cyclists in our area to attend and voice your opinion at the meeting.   We have learned that the Mayor may attempt to limit the opportunity to speak to only Sunset Hills residents and businesses.  We were given a copy of a letter today wherein he is seeking Board of Alderman support to shut down non-residents from voicing their opinions. As a St. Louis Trial Law Firm, we believe that any attempt to limit non-residents from speaking is unconstitutional and we hope that you show up and make your voice heard if you use the roads in Sunset Hills or believe in supporting safety for all the vulnerable road users.

Some alderman, residents, and non-resident cyclists have been very vocal about the need to impeach the Mayor for his actions in this case and for other unrelated reasons. Cyclists and supporters of the Mayor both attended the last meeting heating up the room during the open forum. Some believe he should not be impeached unless he is found guilty of a crime first, while others believe the unethical actions he admitted to in the media, along with his actions since the alleged crime occurred, is enough to impeach. Missouri state law does not require a finding of guilt to impeach a Mayor in a city the size of Sunset Hills; however there are currently no ordinances in effect regarding impeachment procedure in Sunset Hills.  The findings of the Grand Jury and likely the police report will be available before the vote to impeach the Mayor, which could come as early as January or February 2015.

WHY A GRAND JURY IN THE CRIMINAL CASE?

Some people may be confused as to why a Grand Jury is necessary as a “Complaint” was filed on October 1, 2014. That is true, however, there must still be a finding of probable cause to proceed to trial in Missouri. Here, the criminal justice process starts by the filing of a document called a “Complaint” wherein the prosecutor states that they believe probable cause exists that the defendant committed certain crimes. This filing is followed by either a preliminary hearing OR a Grand Jury proceeding resulting in an indictment if a “true bill” is issued. The prosecutor’s office in the Mayor’s case decided to send it to the grand jury either before or after it was scheduled for preliminary hearing at the last docket. This is within their right to switch to a Grand Jury.

In Missouri, a defendant who is subject to indictment by Grand Jury is denied the right to present evidence to explain or contradict the charge, although as we saw in the Wilson case, a prosecutor may choose to present contradictory or exculpatory evidence. The Mayor has no constitutional or other right to appear before the Grand Jury and will only be there if the prosecutor calls him as a witness. The handling of the Darren Wilson Grand Jury evidence and the fact he testified was unusual. It is unlikely the Mayor would be called as a witness, although not impossible. There are no defense attorneys involved in a Grandy Jury hearing. The fact that this case went to a Grand Jury is significant because if it went to a preliminary hearing the Mayor would have had the right to appear and cross-examine witnesses through counsel, unlike the grand jury indictment process. Plus, the public and media would be able to see the testimony in a preliminary hearing.

Even if a true bill is issued, the indictment is merely an accusation against the Mayor. The true bill is not “evidence” that the Mayor committed the crimes charged. He still has a right to a full criminal trial. However, as far as impeachment goes, if probable cause is found the “true bill”, if issued, could be relied upon by the Board of Alderman, along with the police report, for purposes of impeachment.  Also, if a “true bill” is issued, an arraignment would then be scheduled, which is the formal presentation of charges against the Mayor in open court. During an arraignment, the charges would be read to Mark Furrer by a judge in the St. Louis County Circuit Court, and then Furrer would be asked to plead guilty or not guilty to the charges. They can also ask to waive the reading and plead guilty or not guilty in paperwork. During this time is also when he may be offered a deal to avoid trial on the charges.

If you have any questions about a criminal or personal injury case arising our of crimes against cyclists, please do not hesitate to contact our firm. We would be honored to advocate on your behalf.

Michelle M. Funkenbusch

St. Louis Trial Lawyer and Bike Advocate

314-338-3500

 

Congress did something SMART… no really: St. Louis Trial Lawyer Breaks Down The SMART Act of 2013.

How to Handle Medicare Liens on Personal Injury Cases

While we were all worrying about falling off the fiscal cliff, Congress and the President did something SMART… literally.   The SMART Act was signed by President Obama on January 10, 2013. It makes numerous complicated administrative changes to Medicare that effect personal injury cases where the employee or plaintiff is on Medicare and has had treatment paid by Medicare.  While most of this may be over the average person’s head, if you stop reading now, just know that something “good” happened to reduce bureaucracy and to speed up settlements that need the federal government’s approval.

For example, when a senior citizen covered by Medicare is treated after an accident or an injury, it’s generally paid for by Medicare. Those medical expenses must then be reimbursed through insurance or a legal settlement. But, the process by which that was to happen has not been running smoothly. The Strengthening Medicare and Repaying Taxpayers, or SMART, Act aims to remedy that.

Many claims involving Medicare beneficiaries could not settle because the parties  could not determine their respective obligations to reimburse the federal government in the Medicare Trust Fund.  The result was a lose-lose-lose for the beneficiary, the defendant, and the Medicare Trust Fund – all because under the former law, Medicare had no pathway to provide the amount due the Trust Fund for “conditional payments” – those payments previously made by Medicare for the injury that will be covered by the settlement.

The SMART Act  fixes this problem by creating a process for Medicare to advise parties in the process of settling, before settlement, of how much is owed, so that the parties can appropriately allocate and resolve their Medicare obligations during settlement. By requiring Medicare to provide the amount due within 65 days of a request, the settling parties will know how much money has to be set aside for Medicare, and factor that amount into their final settlement.

There were numerous other changes. I have summarized some of them for you below.  These amendments will require changes to settlement procedure, lien resolution and reporting, and release language.  If you are on Medicare and have a personal injury case, make sure you have a lawyer that knows and understands the SMART ACT.

SUMMARY OF SOME OF THE CHANGES

Access to Information About How Much Medicare Paid

Old Law:   Did not require Medicare to give immediate access to the conditional payments that were made on behalf of a claimant.

New Law:  Up-to-date Conditional Payment Information Available Online

Claimants and responsible reporting entities (RREs, as defined by 42 U.S.C. § 1395y(b)(8)) will now have access to up-to-date information on the claims for which conditional payments have been made by CMS. Again,  conditional payments are those payments previously made by Medicare for the injury that will be covered by the settlement. The SMART Act requires CMS to make claims information—including payment amounts and information regarding claims related to a potential settlement, judgment, or other payment—available to claimants or their authorized representatives and RREs (that have obtained the claimant’s consent) through a secure website. This information must be updated no later than fifteen (15) days after the date that payment is made.

Additionally, claimants or RREs now may provide notice to CMS that a settlement, judgment, award, or other payment is reasonably expected and the date of the expected payment up to 120 days before the reasonably expected date of the payment.

CMS already has a web-based portal for claims information, the Medicare Secondary payer Recovery Portal [https://www.cob.cms.hhs.gov/MSPRP/], which appears to satisfy the requirements of the SMART Act. Final regulations must be promulgated by  October 10, 2013, nine (9) months after date of enactment, the effective date of this provision.

Pre-Settlement Lien Demands

Old Law:  Medicare could not provide a final lien demand until after settlement.  The inability to finalize Medicare’s reimbursement interest prior to settlement complicated settlement and lien resolution.

New Law: Establishing Conditional Payment Exposure Prior to Settlement

The SMART Act provides a mechanism by which a claimant or RRE (responsible reporting entities as defined by 42 U.S.C. § 1395y(b)(8)) determines liability for conditional payments prior to a settlement, judgment, award, or other payment for conditional payments. To do so:

  • the claimant or RRE (with the claimant’s consent) must obtain a statement of reimbursement amount from the website during the “protected period”—defined as the time, if any, after the expiration of the federal government’s response period following notice of a settlement, judgment, award, or other payment
    • the federal government’s response period is 65 days following notice
    • it may be extended by an additional 30 days if additional time is required to address claims for which payment has been made
    • it does not include any days where there was a failure in the claims payment and posting system due to exceptional circumstances as defined by regulation
  • the related settlement, judgment, award, or other payment must be made during that period, and
  • the last statement of reimbursement downloaded during that period and within three (3) business days of the date of the settlement, judgment, award, or other payment shall constitute the final conditional amount subject to recovery by the federal government related to that settlement, judgment, award, or other payment.

Final regulations must be promulgated by October 10, 2013, nine (9) months after date of enactment, the effective date of this provision.

Minimum Values Established

Old Law: The Medicare Lien reimbursement process currently applies even to settlements of minimal value.

New Law:  The SMART Act establishes a threshold below which the lien reimbursement and Section 111 reporting obligations do not apply.  The threshold will be established each year beginning in 2014.  The minimum threshold exception does not apply to settlements concerning alleged ingestion, implantation or exposure (including asbestos).

UPDATED July 31, 2013:

To further explain the minimum values… the SMART Act requires HHS to set a “single monetary compliance threshold” for certain claims, starting on November 15, 2014.  The purpose underlying that amendment is to avoid expending resources in seeking to recover conditional payments the value of which is less than the expense necessary to recover them. This is sort of a common sense provision as you will.  The “monetary compliance threshold” that the Act contemplates would be a dollar figure that defines the minimum value of a conditional payment for which Medicare could pursue reimbursement without wasting more resources in seeking to recover the payment than the claim itself is worth.  The SMART Act requires the Secretary of HHS to set and adjust that minimum threshold figure no later than November 15 each year, starting in 2014.  Attorneys should calander this date to learn the threshold for that year.

The monetary compliance threshold does not apply to all conditional payments.  More specifically, the monetary compliance threshold applies only to (1) liability TPOC reporting (total payment obligation to the claimant); and (2) conditional payments pertaining to “alleged physical trauma-based incidents,” but not incidents based on alleged ingestion, implantation, or exposure.

§111 Penalty Modification

Old Law: Companies that reported settlements involving Medicare beneficiaries to CMS either late or erroneously were subject to automatic fines of $1,000 per-day, per-claim.

New Law: Such penalties are now discretionary, not automatic.  HHS is directed to create “safe harbors” for companies that report in good faith, despite being late or in error. §203, SMART Act.

No SSN or HICN

Old Law: Claims professionals and settlement parties use claimants’ Social Security numbers (SSNs) or Health Insurance Claim Numbers (“Medicare numbers”) to access claimant health records. This situation has obvious and troubling privacy implications.

New Law: Within 18 months, the Secretary of HHS is to change §111 of Mandatory Insurance Reporting to make use of SSNs and Medicare numbers optional rather than required. Medicare beneficiaries are understandably reluctant to provide this information – given the high incidence of identity theft.  The SMART Act protects beneficiaries’ sensitive personal information while also reducing professionals’ liability exposure in the event of subsequent beneficiary identity theft. §204, SMART Act.

UPDATE:  July 31, 2013

I received a call from a lawyer today asking if SSN’s are still required as his client does not want to give out his SSN. As of this date, SSN’s are still required.   The Act provides that CMS must implement this requirement within 18 months of the SMART Act’s enactment, or by the middle of 2014.  That deadline is not a firm one, however.  The Act permits the Secretary of the Department of Health and Human Services (HHS) (the agency in which CMS operates) to request an extension of that 18-month deadline by “one or more periods up to one year each” if the Secretary believes that eliminating the use of social security numbers and health insurance claim numbers by the operative deadline “threatens patient privacy or the integrity of the secondary payer program[.]”  I will keep monitoring for changes but I suggest if you are an attorney and uncertain that you contact the HHS Department.

Three-Year Statute of Limitations

Old Law:   The MSP statute permits the government to pursue settling defendants for unsatisfied Medicare Liens in certain circumstances, even after the defendant has paid settlement funds to the plaintiff. Unclear law and inconsistent court rulings left settlement parties without a clear answer on the scope of the statute of limitations for the government to bring an action seeking conditional payment.

New Law: The SMART Act codifies a 2010 U.S. District Court decision – U.S. v. Stricker – which held that the government must file a complaint within three years of receiving notice that a judgment or settlement has been reached. §205, SMART Act.

Full Text of H.R. 1845: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1845rds/pdf/BILLS-112hr1845rds.pdf

 

A Lawyer’s Timeline Under SMART for Finding Out How Much to Pay Back Medicare

For those lawyer fans of this blog, starting in October 2013, you should follow these rules to obtain a Final Conditional Amount.

  1. T-120 days to settlement – Send an Expected Settlement Notice to the MSPRC;
  2. T-115 days to settlement – Check to see if the MSPRC received the Expected Settlement Notice.  Everyone knows the MSPRC response, “we don’t have that in the file” or “I don’t see that here.”  If you don’t check you might waste the entire process.
  3. T-55 days to settlement – You should receive notice that the Final Conditional Amount is available for download on the MSPRC website, or more likely, the Medicare Secondary Payer Recovery Portal (MSPRP).  If you have not, contact the MSPRC to check the status.  Keep in mind the rule states they have 65 days from receipt of your notice – so we will have to keep track of how they define the word receipt.  If your case qualifies for “exceptional circumstances” the MSPRC will tell you it needs another 30 days to process the Final Conditional Amount.
  4. T-25 days to settlement – You should receive notice that your exceptional circumstances request is completed and the Final Conditional Amount is available for download.
  5. T-3 days to settlement – You must download the Final Conditional Amount from the designated website.  If you do so at 4 days to settlement it is apparently invalid and does not constitute a Final amount.  If you do so more than 3 days after settlement (we believe after is still okay – the rule uses the word “within”) it is also invalid.

-Published January 31, 2013.  Authored by Michelle M. Funkenbusch, St. Louis Trial lawyer

If you know someone in need of a personal injury lawyer, please contact St. Louis Personal Injury Lawyer Michelle Funkenbusch at 314-338-3500 .

 

 © 2013 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

 

Learn Food Warranty Law Before You take Another Bite: Missouri Personal Injury Lawyer Gives You Some Legal Thoughts to Chew on.

We ALLL have food on the brain the day before Thanksgiving. So Missouri personal injury lawyer, Michelle Funkenbusch sums up Food Hazard/Choking Law for You:

 

Missouri Personal Injury Lawyer on Food/Choking Hazard Law
Missouri Personal Injury Lawyer on Food/Choking Hazard Law

According to Missouri personal injury lawyer, Michelle M. Funkenbusch,  if you are injured  at a restaurant choking on food hazards (like bones/plastic/toothpicks), Missouri courts follow warranty law to determine liability.  The same is true if you purchase a turkey from your local grocery store, cookies from your local scout troop, or candy from a vending machine, or even a beer from your local pub.  Specifically, Missouri follows the common law principle that there is an implied warranty as between the retail dealer and the consuming purchaser in the sale of food, including a warranty of freedom from foreign substances which may be injurious to the purchaser. Degouveia v. H.D. Lee Mercantile Co., 231 Mo.App. 447, 100 S.W.2d 336, 339 (1936).  A claim for common law implied warranty of fitness for consumption requires that a Plaintiff show:  (1) the defendant sold a food substance meant for human(or animal) consumption;  (2) the plaintiff (or your animal) ate or drank the food/drink; (3) when the defendant sold the food/drink it was not fit for human(or animal) consumption; and (4) the Plaintiff was damaged as a direct result.  See Missouri Approved Instructions (MAI 25.02).

[RANDOM LEGAL FACT OF THE DAY: The MAI is the book of jury instructions relied on by courts to instruct the jury what must be proved in a particular case. The Missouri Supreme Court committee on jury instructions creates this book and it must be reviewed and used in every civil case that goes to trial.]

Grandma’s Food Almost Killed Me!!

What if you are at your Grandma’s house for Thanksgiving and you choke on a foreign substance that you could/would not have inspected in the food?  Assuming it was not added to the food by your grandmother (which of course will be a defense of the seller and manufacturer), you may have a case for a personal injury lawyer to review.  It doesn’t matter that you didn’t buy the food at a restaurant or store.  If the injured party in a choking case was not the purchaser of goods, but is a natural person who is a member of the family or household of the buyer, or was a guest in the buyer’s home, and it was reasonable to expect that such person would consume  the food/drink, then the seller or manufacturer can be liable under the Uniform Commercial Code. In other words, even though you lack “privity of contract” you may be able to recover and should seek the counsel of a St. Louis personal injury lawyer.    And yes, you could sue Grandma for negligent cooking… but that’s just not nice!

Missouri Personal Injury Case Against the Manufacturer??

If you have sustained personal injury  in Missouri as a result of the consumption of a foreign body or substance in a food or beverage sold, you may also, under proper circumstances, maintain an action to recover damages for such injury against the manufacturer of the product, on the ground of breach of an express or implied warranty.  In the absence of an express warranty (something actually written on the product or packaging), the law implies that the manufacturer or packer of foods intended for human consumption warrants that his products are fit for human consumption, and that he has used in the selection and preparation of such products the degree of care ordinarily exercised by persons skilled in the business of preparing and packing food for distribution or sale to the general public.

A  manufacturer, in the proper factual situation, is held as an “absolute insurer against knowable dangers”, and thus has an incentive to keep abreast of scientific knowledge to keep knowable dangers out of their products.  But, in some cases (like in the case of cigarettes), what is knowable can be difficult to prove without a great deal of expense and highly trained personal injury lawyers.  Ross v. Phillip Morris, 328 F.2d 3 (United States Court of Appeals Eighth Circuit 1964).

Other Theories a St. Louis Personal Injury Lawyer May File Suit for in A Food Hazard Case

You may also have the right to sue under other theories of personal injury. For example, you may have a claim under the Uniform Commercial Code for breach of an implied warranty for fitness for a particular purpose or breach of implied warranty of merchantability (fitness for an ordinary purpose) in general.  You may also have a claim for strict liability for a product defect or for failure to warn.   These are complicated claims and require the expertise of an experienced St. Louis personal injury lawyer.

Choking on Bones in the Turkey vs. Glass in the Turkey… why is one a good case and one a bad case?

To have a good case of liability, you usually have to have been injured by something foreign to the food you were eating, but not always.  Liability for injuries caused by a substance in food will often depend on whether the substance in question is considered to be “foreign.”  Under the so-called foreign-natural test that many other states rely on, there is no liability for injury caused by a substance that are considered “natural” to the food sold.  If the object is one that is naturally associated with the type of food in which it is found, it is not considered to be foreign, since the occasional presence of such objects is something to be anticipated by the consumer. Thus, for example, a hardened, crystallized grain of corn has been held not to be foreign to a package of corn flakes, and a bone has been held not to be foreign to a canned food product containing meat of the kind from which the bone came. However, some courts have held that objects which are natural to the type of food involved but which generally are not found in the style of the food as prepared may be deemed to be the equivalent of a foreign substance. Thus, in an action against a packer of canned chicken for injuries sustained from a chicken bone in chicken chow mein served at the plaintiff’s school and made from the defendant’s product, the chicken bone was held to be “something that should not be” in defendant’s product, which defendant had advertised as “boned chicken.” It has also been held in other states that breach of an implied warranty of fitness is shown by proof of a piece of oyster shell in a can of oysters sold by a defendant retailer, even if it appears that shells cannot be entirely eliminated in the canning of oysters.

Several states have rejected the “foreign-natural” test in favor of what is known as the “reasonable expectation” test. This test is based on what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to its preparation.

The “foreign-natural” test apparently continues to be the rule in most jurisdictions.  In states where the “foreign-natural” test is applied, even if an injured plaintiff can establish an otherwise legally sufficient claim of negligence, breach of implied warranty, or strict tort liability, a food processor may be free from liability as a matter of law if the deleterious object or substance in the food is natural to the ingredients of the product.  However, in states where the “reasonable expectation” test is the rule, liability might be incurred on any appropriate theory even for a “natural” defect if it is one not reasonably anticipated by the consumer. There appears to be a recent trend among several states toward acceptance of  the “reasonable expectation” test.

Missouri has yet to directly adopt either test mentioned above and leaves the fitness for consumption a question for the jury.  This grey area of the law is another reason why you should consult with an experienced Missouri personal injury lawyer.  

Michelle M. Funkenbusch has handled cases involving plastic in pudding, foreign substances on buffets, rat parts in frozen spinach, lead poisoning, and more. Contact her if you would like to discuss your potential case for free at 314-338-3500.

 © 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

CLICKABLE MISSOURI VOTER GUIDE: BE PREPARED FOR ELECTION TUESDAY NOVEMBER 6, 2012

VOTE NEXT TUESDAY, November 6th. 

Voter Guide for Missouri General Election Provided by the Law Offices of Michelle M. Funkenbusch

Finding your polling place and sample ballot:

 Absentee Voting:

  • If you will be absent from your voting district on election day, or meet one of the other qualifications for absentee voting, you can request a ballot and return it by mail or fax, or vote in an early/absentee voting location–but you’ll need to plan ahead.  Details and information about absentee voting are here.

Information about candidates:

How to find your candidate’s names, your US Rep, State Rep, and State Senate District numbers:

BEWARE that many/most district numbers have changed this year in Missouri, thanks to the new census data and re-districting. Your state representative district number is almost certainly changed, and many state senate districts and US representative districts have changes boundaries, too–sometimes by a little and sometimes by a lot. Here is how to find your updated info:

November 2012 Ballot Issues:

MISSOURI CONSTITUTIONAL Amendment 3

 Judges
OFFICIAL BALLOT LANGUAGE
Shall the Missouri Constitution be amended to change the current nonpartisan selection of supreme court and court of appeals judges to a process that gives the governor increased authority to:
  • appoint a majority of the commission that selects these court nominees; and
  • appoint all lawyers to the commission by removing the requirement that the governor’s appointees be nonlawyers?
There are NO estimated costs or savings expected if this proposal is approved by voters.
FAIR BALLOT LANGUAGE
“yes” vote will amend the Missouri Constitution to change the current nonpartisan selection of supreme court and court of appeals judges to a process that gives the governor increased authority to appoint a majority of the commission that selects these court nominees. This measure also allows the governor to appoint all lawyers to the commission by removing the requirement that the governor’s appointees be nonlawyers.
“no” vote will not change the current constitutional provisions for the nonpartisan selection of supreme court and court of appeals judges.

Proposition A

Law enforcement
Shall Missouri law be amended to:
  • allow any city not within a county (the City of St. Louis) the option of transferring certain obligations and control of the city’s police force from the board of police commissioners currently appointed by the governor to the city and establishing a municipal police force;
  • establish certain procedures and requirements for governing such a municipal police force including residency, rank, salary, benefits, insurance, and pension; and
  • prohibit retaliation against any employee of such municipal police force who reports conduct believed to be illegal to a superior, government agency, or the press?
State governmental entities estimated savings will eventually be up to $500,000 annually. Local governmental entities estimated annual potential savings of $3.5 million; however, consolidation decisions with an unknown outcome may result in the savings being more or less than estimated.
“yes” vote will amend Missouri law to allow any city not within a county (the City of St. Louis) the option of establishing a municipal police force by transferring certain obligations and control of the city’s police force from the board of police commissioners currently appointed by the governor to the city. This amendment also establishes certain procedures and requirements for governing such a municipal police force including residency, rank, salary, benefits, insurance, and pension.  The amendment further prohibits retaliation against any employee of such municipal police force who reports conduct believed to be illegal to a superior, government agency, or the press.A “no” vote will not change the current Missouri law regarding St. Louis City’s police force.If passed, this measure will have no impact on taxes.

Proposition B

Tobacco
Shall Missouri law be amended to:
  • create the Health and Education Trust Fund with proceeds of a tax of $0.0365 per cigarette and 25% of the manufacturer’s invoice price for roll-your-own tobacco and 15% for other tobacco products;
  • use Fund proceeds to reduce and prevent tobacco use and for elementary, secondary, college, and university public school funding; and
  • increase the amount that certain tobacco product manufacturers must maintain in their escrow accounts, to pay judgments or settlements, before any funds in escrow can be refunded to the tobacco product manufacturer and create bonding requirements for these manufacturers?
Estimated additional revenue to state government is $283 million to $423 million annually with limited estimated implementation costs or savings. The revenue will fund only programs and services allowed by the proposal. The fiscal impact to local governmental entities is unknown. Escrow fund changes may result in an unknown increase in future state revenue.
 
“yes” vote will amend Missouri law to create the Health and Education Trust Fund with proceeds from a tax on cigarettes and other tobacco products.  The amount of the tax is $0.0365 per cigarette and 25% of the manufacturer’s invoice price for roll-your-own tobacco and 15% for other tobacco products.  The Fund proceeds will be used to reduce and prevent tobacco use and for elementary, secondary, college, and university public school funding.  This amendment also increases the amount that certain tobacco product manufacturers must maintain in their escrow accounts, to pay judgments or settlements, before any funds in escrow can be refunded to the tobacco product manufacturer and creates bonding requirements for these manufacturers.
“no” vote will not change the current Missouri law regarding taxes on cigarettes and other tobacco products or the escrow account and bonding requirements for certain tobacco product manufacturers.
If passed, this measure will increase taxes on cigarettes and other tobacco products.

Proposition E

Health care
Shall Missouri Law be amended to prohibit the Governor or any state agency, from establishing or operating state-based health insurance exchanges unless authorized by a vote of the people or by the legislature?No direct costs or savings for state and local governmental entities are expected from this proposal. Indirect costs or savings related to enforcement actions, missed federal funding, avoided implementation costs, and other issues are unknown.
 
“yes” vote will amend Missouri law to prohibit the Governor or any state agency, from establishing or operating state-based health insurance exchanges unless authorized by a vote of the people or by the legislature.
“no” vote will not amend Missouri law to prohibit the Governor or any state agency, from establishing or operating state-based health insurance exchanges unless authorized by a vote of the people or by the legislature.
If passed, this measure will have no impact on taxes.

The officially approved ballot language CITED above for all four November ballot issues is here.

Key Statewide Races:

Governor:

Jay Nixon (I) – platform
Dave Spence – platform

Lieutenant Governor:

Peter Kinder (I) – website
Susan Montee – website

Secretary of State:

Jason Kander – website – wikipedia
Shane Schoeller – website – wikipedia

Treasurer:

Cole McNary – website – wikipedia
Clint Zweifel – website – wikipedia

Attorney General:

Chris Koster (I) – website – wikipedia
Ed Martin – website – wikipedia

All other offices/candidates

Hyperbaric Oxygen Therapy to Treat Nursing Home Patient Wounds

NURSING HOME NEGLIGENCE LAWYER ON WOUND CARE

Des Peres Hospital opened a new outpatient wound care center Monday that treats patients with chronic or non-healing wounds associated with, among other things, diabetes, pressure ulcers, trauma, peripheral vascular disease, poor circulation, immobility and other conditions.   The center offers two chambers for hyperbaric oxygen therapy to reduce swelling, fight infection and build new blood vessels, ultimately producing healthy tissue.

Pressure ulcers are the most common cause for a lawsuit against nursing homes, if they are due either to a lack of prevention or improper treatment.  The Wound Care Center by Des Peres Hospital is using some of the most advanced wound care technology available and is setting the standard of care higher for treatment of wounds.

In addition to the hyperbaric chambers, the new center has infectious-disease management, physical therapy, occupational therapy, laboratory evaluation, nutritional management, pain management, diabetic education, radiology testing and wound debridement (removal of dead tissue) to address the patient’s total health.  For more information, visit www.stlwoundcare.com.

Pressure ulcers, also known as bed sores, pressure sores, or decubitus ulcers, are wounds caused by unrelieved pressure on the skin. They usually develop over bony prominences, such as the elbow, heel, hip, shoulder, back, and back of the head. Pressure ulcers are serious medical conditions and one of the important measures of the quality of clinical care in nursing homes.

From about 2% to 28% of nursing home residents have pressure ulcers.

The most common system for staging pressure ulcers classifies them based on the depth of soft tissue damage, ranging from the least severe (stage 1) to the most severe (stage 4).

There is persistent redness of skin in stage 1; a loss of partial thickness of skin appearing as an abrasion, blister, or shallow crater in stage 2; a loss of full thickness of skin, presented as a deep crater in stage 3; and a loss of full thickness of skin exposing muscle or bone in stage 4. Clinical practice guidelines for pressure ulcers have been developed and provide specific treatment recommendations for stage 2 or higher pressure ulcers, including proper wound care.

Statistics from the CDC:

  • In 2004, about 159,000 current U.S. nursing home residents (11%) had pressure ulcers. Stage 2 pressure ulcers were the most common.

  • Residents aged 64 years and under were more likely than older residents to have 

  • pressure ulcers.

  • Residents of nursing homes for a year or less were more likely to have pressure ulcers than those with longer stays. 

  • One in five nursing home residents with a recent weight loss had pressure ulcers. 

  • Thirty-five percent of nursing home residents with stage 2 or higher (more severe) pressure ulcers received special wound care services in 2004.

Data from the national nursing home survey, 2004, published in NCHS Data Brief, No. 14, February 2009.

If a hard-to-heal wound is not treated, it may get bigger and deeper over time.  This may significantly increase the patient’s chances of infection, which if severe enough, may require hospitalization. If the tissue damage from infection is extensive, the patient may need surgery or amputation.

If your loved one has received improper care or you are not certain whether a nursing home has acted below the standard of care, contact Michelle Funkenbusch at 314-799-6602 for a free consultation.  As a trial lawyer, Funkenbusch has been involved in many nursing home cases and has witnessed the lack of training of staff, the improper care, the lack of documentation of records, and the abuse that occurs regularly.   A lawyer needs to be properly trained to read nursing home records. Contact Funkenbusch for more details about her extensive experience in this area.

 

© 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

 

Red Light Cameras… Here to Stay

They are here to stay…

Missouri Red Light Camera Review

The Creve Coeur City Council could hear an ordinance as soon as next week that would move to extend the city’s use of “Red Light” cameras.

As a lawyer, the MOST common question I am asked from friends and family is whether red light camera violations are enforceable.  The answer usually depends on where you got the ticket.

red light camera is a traffic enforcement camera that captures an image of a vehicle which has entered an intersection against a red traffic light.  By automatically photographing vehicles that run red lights, the camera produces evidence that assists authorities in their enforcement of traffic laws. Generally the camera is triggered when a vehicle enters the intersection after the traffic light has turned red. Typically, a law enforcement official will review the photographic evidence and determine whether a violation occurred. A citation is then usually mailed to the owner of the vehicle found to be in violation of the law.

On August 29, 2012, red light cameras survived yet another class-action lawsuit in Missouri.  A Jefferson County judge rejected a suit that aimed to prohibit the use of red light cameras in Arnold, which became the first Missouri city to deploy the cameras in August 2005.

In his ruling August 29, Judge Mark Stoll noted that the arguments of the defendants — the City of Arnold and camera company American Traffic Solution — were the “most persuasive.”

With this Arnold ruling, attorneys with the Simon Law Firm of St. Louis have now lost four decisions that sought to prohibit use of the cameras in Kansas City, Arnold, Florissant and Creve Coeur.

Despite at least a half-dozen legal challenges statewide, only two rulings have gone in favor of those opposed to the cameras.

In February 2012, a St. Louis Circuit Court judge ruled the city ordinance void. (That decision is under appeal.) In his ruling February 17, Judge Mark Neill upheld a partial judgment he made last May that found the city improperly enacted its red-light camera ordinance without enabling legislation from the Missouri legislature.

And in 2010 the Missouri Supreme Court held against the way Springfield enforced its citations.

For more information on the Creve Couer red light camers see: http://crevecoeur.patch.com/articles/red-light-cameras-seem-likely-to-stay

© 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

Funkenbusch Attends Art Auction Charity Event to Benefit Non-Profit PayBack, Inc.

Trial Attorney Michelle Funkenbusch attended the PayBack Art Auction and Friends of PayBack Party on October 1, 2012.  Funkenbusch is the Immediate Past President and Executive Board Member of the 501(c)(3) charity PayBack, Inc..  The non-profit held its annual Reception and Art Auction at Mark and Cheryl Levison’s historic Compton Heights house.

PayBack, Inc. Art Auction and Friends of PayBack Party

All proceeds from fundraiser event benefit PayBack, Inc. The event was sponsored by BJC HealthCare, Lashly & Baer, P.C., and Datamax.The guests enjoyed an elegant reception with cocktails and hors d’oeuvres, and music by Jeff Riley Jazz Suite Orchestra.

An Art Auction featured St. Louis local artists Jennifer Hayes, Scott Lokitz, Myles Keough, Crystal Rolfe and JA Chapman.

David Shaller, Attorney at Law, was the 2012 Friends of PayBack Honoree, and was a founding Board members of 1983. For more than 30 years, St. Louis Attorney David Shaller has helped families and individual with their legal needs. David Shaller received the 2012 Community Spirit Award Winner, Corporate Sponsorship Award Winner, and Lifetime Service Award Winner.

PayBack, Inc. is non-profit corporation specializing in securing funding for juvenile restitution programs. 70% of the juveniles, who participate in PayBack, never return to the Family Courts as re-offenders. More than half a million dollars has been returned to metro area crime victims by the youth in the PayBack program.

PayBack, Inc. is a juvenile restitution/community service organization that has been serving the greater St. Louis Metropolitan area since 1982. The  offices are currently located in the St. L

ouis Family Court Building. PayBack’s goal is to raise money to fund our “restorative justice” program whereby juvenile offenders work at other local non-profits (like the YMCA or Big Brothers/Big Sisters) around our community to earn money to pay back their victims. Our program is unique in that the victims actually get paid back up to $500.00 when PayBack sends a check to the court for the hours the child worked. In addition, the children learn accountability and job skills while a long list of non-profits get volunteers. The community, the victims, and the children all gain from this wonderful program that restores justice. Funding for Payback is entirely supported by voluntary contributions, grants, and donations from foundations.

Upcoming on Sat. Oct. 20, 2012, is PayBack, Inc.’s 3rd Annual Bocce Tournament at Milo’s on The Hill, St. Louis, MO, 5201 Wilson at Marconi, 63110. The first round starts at noon.  $100 per each 4 person team/ $25 a person. Double Elimination. Registration for each team of 4 includes:   • one appetizer (except antipasto platter) and • one pitcher of domestic beer

For photos from the 2012 Art Auction event: http://laduenews.mycapture.com/mycapture/folder.asp?event=1542554&CategoryID=72747&ListSubAlbums=0&thisPage=2

Supreme Court of Missouri Nominees Announced

We will have a new Supreme Court Justice in the State of Missouri come this December.  The Honorable Richard B. Teitelman, chief justice of the Supreme Court of Missouri and chairman of the Appellate Judicial Commission, announced that the commission selected its panel of nominees to fill the vacancy on the Supreme Court of Missouri. This vacancy was created when Judge William Ray Price Jr. retired in August 2012, after serving 20 years on the Court.  Price had served two terms as chief justice.

After more than six hours of public interviews, nearly three hours of deliberations and six rounds of balloting, the nominees are: Hon. Michael W. Manners, five votes; Stanley J. Wallach, four votes; and Paul C. Wilson, four votes.

Manners is a circuit judge in the 16th Judicial Circuit (Jackson County). He was born Sept. 25, 1950. He earned his bachelor of arts degree, summa cum laude, in 1972 in history and political science from Central Missouri State University in Warrensburg, Mo., and his law degree in 1976 from the University of Missouri-Kansas City School of Law. Manners lives in Lee’s Summit.

Wallach is an attorney with the Wallach Law Firm in St. Louis. He was born Aug. 24, 1965. He earned his bachelor of arts degree, with honors, in 1987 in political science and Russian from Duke University in Durham, N.C., and his law degree in 1992 from the University of Chicago Law School. Wallach lives in Kirkwood, Mo.

Wilson is a member of Van Matre, Harrison, Hollis, Taylor & Bacon PC in Columbia, Mo. He was born May 23, 1961. He earned his bachelor of arts in 1982 from Drury College in Springfield, Mo., and his law degree, cum laude, in 1992 from the University of Missouri-Columbia School of Law. Wilson lives in Jefferson City.

The governor has 60 days to select one member of the panel to fill the vacancy. Should he fail to do so, the Missouri Constitution directs the commission to make the appointment.

In addition to Teitelman, the commission is composed of attorneys Thomas M. Burke of St. Louis, J.R. Hobbs of Kansas City and John D. Wooddell of Springfield and lay members Cheryl M. Darrough of Columbia, John T. Gentry of Springfield and Donald L. Ross of St. Louis.